​The Congressional Review Act Revisited

This month the House of Representatives passed two resolutions under the Congressional Review Act (5 USC 801, et seq .) that disapproved of EPA’s recent rules for greenhouse gases from new and existing power plants. S.J. Resolutions 23 and 24. These two resolutions had already passed the Senate on November 17, 2015. The vote in the Senate was 52-46, and in the House was 235-188. These resolutions of disapproval will next go to the President, who has previously threatened to veto them . They are only the third and fourth times that both houses of Congress have ever sent a resolution of disapproval of agency rules to the President.

Earlier this year, Congress passed a resolution of disapproval (S.J.Res.8) of an NLRB union elections rule, with a Senate vote of 53-46 and House vote of 232-186, and the President vetoed it on March 31, 2015. That one had been only the second CRA resolution passed by both Houses of Congress, and it was the first ever vetoed by a President. The first time both the House and Senate disapproved a rule under the CRA was in March 2001(an OSHA ergonomics rule); that one was signed by the President.

Votes of disapproval even by one house of Congress have been relatively infrequent since the CRA was enacted in 1996. Until this year, my recollection is that the last time a majority of the Senate voted to disapprove a regulation was in 2005, regarding a USDA rule, but the House did not act thereafter. Until this year, it appears that the House had last voted to disapprove a rule in 2011–an FCC internet rule–but the Senate did not act on that. (Background statistics are on pp.11-12 of a 2012 report for ACUS.) And, as noted, no President had ever vetoed a Congressional resolution of disapproval of an agency rule before President Obama did so this year.

Another interesting wrinkle: As with the earlier NLRB rule, the EPA rules that are the subject of the resolutions of disapproval are also subject to pending litigation challenges under the APA. With regard to the Congressional Review Act, section 805 provides that “No determination, finding, action, or omission under this chapter shall be subject to judicial review.” And section 801(g) provides that “If the Congress does not enact a joint resolution of disapproval under section 802 respecting a rule, no court or agency may infer any intent of the Congress from any action or inaction of the Congress with regard to such rule, related statute, or joint resolution of disapproval (emphasis supplied).”) Perhaps others would like to comment on whether there are any scenarios in which CRA votes or vetoes could be relevant to APA lawsuits.

Lastly, ACUS’ Committee on Judicial Review discussed its Congressional Review Act project at its September 27, 2011 meeting and then chose not to proceed with recommendations pertaining to the Congressional Review Act. The ABA Section on Administrative Law has not directly addressed this in recent years, though it appears the Section made recommendations in 1997.